41 So. 2d 423 | Ala. | 1949
Lead Opinion
We granted certiorari so that we might consider the action of the Court of Appeals in discharging the defendant upon reversal of the judgment of conviction. This case involves a jury trial and so the question has arisen as to the power of the court to discharge the defendant without the verdict of a jury. Reference is made by petitioner to § 810, Title 7, Code of 1940, which is as follows:
"The appellate court may, upon the reversal of any judgment or decree, remand the same for further proceedings, or render such judgment or decree as the court below should have rendered, when the record enables it to do so."
It is insisted that the Court of Appeals under the foregoing statute could do no more than what the trial court could do, which was to render a judgment based on the verdict of the jury. The decision in Wilkes v. Stacy Williams Co.,
"If the judgment is reversed, the supreme court or the court of appeals may order a new trial, or that the defendant be discharged, or that he be held in custody until discharged by due course of law, or make such other order as the case may require; and if the defendant is ordered to be discharged, no forfeiture can be taken on his undertaking of bail."
In considering the effect of this statute, together with § 389, Title 15, Code of 1940, which provides that the supreme court or court of appeals "must render such judgment as the law demands," this Court in Robison v. State,
The motion to exclude the evidence raised the question of the insufficiency of the evidence in the lower court. Randolph v. State,
In the case at bar the decision of the Court of Appeals does not seem to us to express an opinion as to whether it reasonably appears from the record that further evidence to sustain the charge cannot be adduced on another trial. Accordingly, While we agree that the Court of Appeals has the power to discharge, the judgment of the Court of Appeals is reversed and the cause is remanded to that Court for further consideration of the sufficiency of the evidence in the light of this opinion.
Reversed and remanded.
BROWN, FOSTER, LIVINGSTON, LAWSON, and SIMPSON, JJ., concur.
Addendum
Opinion modified and application for rehearing overruled.
BROWN, FOSTER, LIVINGSTON, LAWSON, and SIMPSON, JJ., concur. *308